Re Special Broadcasting Service

[2011] QCATA 272

CITATION: Re Special Broadcasting Service [2011] QCATA 272

PARTIES: Special Broadcasting Service

APPLICATION NUMBER:   APL306-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 6 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The principal registrar is directed to reject the application for leave to appeal by the Special Broadcasting Service.

CATCHWORDS:

APPLICATION FOR LEAVE TO APPEAL – where applicant was not a party to the decision – where principal registrar rejected application – where the application does not comply with the Queensland Civil and Administrative Tribunal Act 2009

Queensland Civil and Administrative Tribunal Act 2009, ss 35, 40, 142

APPEARANCES and REPRESENTATION (if any):

The tribunal conducted a review of the decision of the principal registrar on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Under the Queensland Civil and Administrative Tribunal Act 2009 the principal registrar of the tribunal has been given a responsibility to accept or reject applications for filing in the tribunal.  The principal registrar may reject an application if the application is made by a person who is not authorised to make it or if the application does not comply with the Act, an enabling Act or the tribunal rules.[1]

   [1] Section 35(3) of the Queensland Civil and Administrative Tribunal Act 2009.

2. An application by the Special Broadcasting Service was rejected by the principal registrar and under section 35(4)(b) the decision to reject the application has been referred to the tribunal.

3. The application that SBS is attempting to file is an application to seek leave to appeal a decision of the tribunal made on 29 July 2011 to make non publication orders about certain documents in the form of a DVD and CDs in matter OCR296-10.  That matter involved a review application filed by Mr Kennedy of a disciplinary decision made by Deputy Assistant Commissioner Stewart.  SBS was not a party to the original review matter.

4. Under section 142 of the Queensland Civil and Administrative Tribunal Act 2009 a party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding.  An appeal against a decision that is not the tribunal’s final decision in a proceeding may be made only if the party has obtained the appeal tribunal’s leave to appeal.[2]  The Act defines a final decision as the tribunal’s decision that finally decides the matters the subject of the proceeding.[3]  The decision made by the tribunal on 29 July 2011 was not the tribunal’s final decision in the proceeding.  An application seeking leave to appeal is accordingly required before that decision can be the subject of an appeal.  

   [2] Section 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009.

   [3] Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009.

5. No section of the Act enables a person who was not a party to the proceeding to seek leave to appeal to the appeal tribunal in a proceeding.   

6. Section 40(1) of the Act provides that a person is a party to a proceeding in the tribunal’s review jurisdiction if the person is the applicant, the decision-maker of the reviewable decision, a person who has intervened in the proceeding, a person who has been joined as a party in the proceeding or someone else an enabling Act states is a party to the proceeding. SBS does not come within any of the categories of persons who are specified as being parties to a review proceeding in section 40(1).

7. SBS is not a party to the proceeding and as a non party SBS cannot seek leave to appeal the decision in question.  The principal registrar was correct to reject for filing the application for leave to appeal as the application does not comply with the Queensland Civil and Administrative Tribunal Act 2009.

8. The tribunal under section 35(6) of the Act directs the principal registrar to reject the application.